Decision
Ms X and Maritime Area Regulatory Authority
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152094-C5J9B0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152094-C5J9B0
Published on
Whether MARA was entitled to rely on article 9(2)(a) of the AIE Regulations to refuse the information requested by the appellant
17 December 2024
1. On 25 June 2024 the appellant requested the following information from MARA:
“[C]opies of any application with supporting documents, as well as records of any correspondence and communication in written or oral form that MARA has regarding the proposed amendment of Ref 2022-MAC-007 -
A) Amendment A.1. Extension of date by application for development permission must be submitted from 18 months to 24 months. Granted 16th May 2024.
B) Proposed Amendment to the current MAC comprising an extension of the MAC Array Area Boundary”
2. Between the 8 July and 10 July 2024 and prior to the decision letter being issued, a series of written communications was exchanged between MARA and the appellant. MARA queried from the appellant whether she could refine the scope of her request, as they viewed that the information being requested was manifestly unreasonable. Additionally, MARA informed the appellant that since she had made her original request that a decision had been made on the proposed amendment of Ref 2022-MAC-007 and they provided her with a link to the relevant page on the Maritime Regulator’s website. Despite this, the appellant declined the offer of assistance from MARA to refine the scope of her request.
3. On 23 July 2024, MARA issued its decision and it refused the appellant’s request under article 9(2)(a) of the AIE Regulations. It highlighted how the appellant’s request for two applications regarding the proposed amendment of Ref 2022-MAC-007 would place an unreasonable demand on MARA’s resources, as it would cause a substantial and unreasonable interference on their ability to perform their core business functions.
4. On the same day, the appellant requested an internal review of this decision.
5. On 22 August 2024, MARA affirmed the decision of the original decision maker to refuse access to the information requested under article 9(2)(a) of the AIE Regulations.
6. The appellant brought an appeal to this Office on 17 September 2024.
7. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and MARA. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
8. In accordance with article 12(5) of the AIE Regulations, my role is to review MARA’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require MARA to make available environmental information to the appellant.
9. This appeal concerns whether MARA was justified to refuse access to information on the proposed amendment of Ref 2022-MAC-007 under article 9(2)(a) of the AIE Regulations.
10. The appellant submitted her request for information under the AIE Regulations in the Irish language. Accordingly, this Office will issue the decision to this appeal in the Irish language and thereby, fulfil its obligations under the National Plan for Irish Language Public Services and the Official Languages (Amendment) Act 2021.
11. Article 9(2)(a) provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable, having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
12. In respect of a request, which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is important to note that both article 7(2)(b) of the AIE Regulations and Article 3 (2)(b) of the AIE Directive specifically envisage that public authorities will deal with the voluminous or complex request, albeit in a longer time frame. The fact that a request is detailed does not mean that it is necessarily unreasonable.
13. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, it is necessary to examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities.
14. The findings of the Court of Justice of the European Union (CJEU) in T-2/03 Verein für Konsumenteninformation v Commission, at paragraphs 101-115, suggest that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. If a public authority wishes to rely on the manifestly unreasonable nature of a request to refuse all or part of that request, it should be in a position to clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
15. Additionally, the test set out by the CJEU at paragraph 69 of its decision c-619/19 Land Baden-Württemberg v Dr should be borne in mind:
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”.
16. I acknowledge that efforts were made by MARA to engage with the appellant prior to issuing a decision on this request. I note how in its original decision MARA refused the appellant’s request on the basis that the information includes:
“[A] significant volume of records such as internal MARA correspondence, draft iterations of documents, phone records and associated notes, in relation to the amendment applications. I conservatively estimate that in excess of 200 records, varying in size form one page to >150 pages to exist. I estimate that the search and retrieval of these records would take well in excess of 75 hours to process. Accordingly, it can be reasonably expected that there will be a significant, adverse effect on the delivery of the Maritime Area Consenting Units functions.”
17. It is not evident from the original decision how MARA came to the conclusion that it holds over 200 records relevant to the appellant’s request. In this regard, MARA does not provide any detail on any preliminary searches carried out, e.g. what individuals were consulted with regards to the search nor does it provide any explanation of how searches were carried out (i.e. manually, by computer, by name and/or by key words). It is also not clear how MARA reached the conclusion that it would take 75 hours to carry out the search and retrieval of these records, how that 75 hours would be broken down and what steps would be required to be taken to process the request. MARA has not provided any information on whether the records are held electronically or in hard copy. Further, MARA has provided no information on the nature and content of the relevant records and whether it contends that any of the exemptions contained in the AIE Regulations might apply to the information sought.
18. The internal review decision does not provide any further detail on these matters, and in its submissions to this Office, MARA stated “We note, the internal review letter did not specifically reference an estimation of the amount of records, however, the internal reviewer completed a search on the system for records associated with the matter and located approximately 138 records, this search result in addition to an estimation of other potential records not saved at that location e.g. email correspondence aligned to the estimation of the original decision”. Given the lack of detail provided in the decision and in submissions to this Office, I am not satisfied that MARA has taken sufficient steps to establish how many records might be relevant to this request, and how long it would take it to process the request.
19. MARA should note that is also necessary that article 9(2)(a) is read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) of the AIE Regulations requires a public authority to consider each request on interest served by its refusal and Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 7(4)(c) of the Regulations requires a public authority to specify the reasons for refusal of a request.
20. In its decision, MARA relies on articles 10(3) and 10(4) to say that the public interest would not be served by disclosing the information, which the appellant has requested. MARA emphasises how the withholding of records will ensure that they continue to perform their functions effectively and to deliver MAC determinations in a timely manner. Notwithstanding this, MARA concedes in the same decision that:
“While records such as the application forms and additional supporting information submitted to MARA by the applicant and final determination documents would be easily retrievable, many other records exist that would not be easily retrievable.”
By applying a restrictive approach as provided for in article 10(4) and also applying article 10(5), I say that MARA should have considered whether it could make available some or all of the “easily retrievable” information to the appellant.
21. Having considered all of the above, I am not satisfied that MARA have established that the administrative burden of this request is such that the request is manifestly unreasonable within the meaning of article 9(2)(a). Volume alone does not mean that a request is manifestly unreasonable, as the AIE regulations specifically provide for an extension of time for the making of a decision where this is justified by the volume of the environmental information request at article 7(2)(b) of the AIE Regulations. I will annul the internal review decision of MARA. Given the nature of this appeal, MARA should carry out a new internal review process. Should MARA continue to be of the view that the request is manifestly unreasonable, it should set this out in the required level of detail in a new internal review decision, having regard to my comments above.
22. For the sake of clarity, I will note that the extension of time provided for at article 7(2)(b) is only available at original decision stage, and not at internal review stage. Therefore, it will not be open to MARA to extend the time for the making of a decision when carrying out a new internal review process.
23. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul MARA’s decision to refuse access to information relating to the proposed amendment of Ref 2022-MAC-007 under article 9(2)(a) of the AIE Regulations. MARA should provide the appellant with a new internal review decision in respect of the request concerned.
24. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information